郭国汀：什么是我们为之奋斗的正义？

Socrates,the most wisdom man in ancient Athens, recognized that he know nothing ofjustice at all, he says ‘what is justice, whether it isvice and ignorance, or wisdom and virtue; that injustice is more profitablethan justice, I simply could not help it. That I know nothing at all! When Idon’t even know what justice is, I shall hardly know whether it is really avirtue or not, and whether one who has it is happy or not happy.’[1] I am one of the first Chinese human rights lawyers who arefighting for justice and lost his law license, ironically until I was forcedinto exiled I do not know what is Justice either; However, after read throughRawls’ A Theory of Justice and Justice as Fairness carefully, I still feel puzzlewhat is justice? In order to make sure what is justice, I read further and findthat majority Chinese, including myself, do not know what is justice.

Justice is existence fromthe beginning. It is prior to the appearance of the political state. Thedisasters that will overtake us if we transgress the law of nature.[2]Justice is the bond of which holds asociety together, a harmonious unionof individuals, each of whom has found his life-work in accordance with hisnatural fitness and his training.[3]Justice like truth is one of the eternal verities; allmankind pays ready and willing lip service to the idea of justice. Goodand bad men alike feel that injustice inflicted on them is an unendurablewrong.

The need for justice rises in every humanheart.You need no education to realise thenecessity of justice and the iniquity of injustice. Justice may be defined as the establishment of right between men andwomen, as individuals or in association. Lord Bacon said that revenge is a kind of wild justice. But true justice is not any kind of revenge,rather is it the redress of a disturbed balance,re-establishment of a spiritual equilibrium in disorder human relationship.[4]Justice cannot be the monopoly of any nation, group, or individual, as equitywas introduced to modify the harshness of law, so Mercy has been born in thehuman heart to mitigate the unyielding quality of justice[5].Morality is a changeable thing, altering with time and place. Standard or moralvalues, become worn-out and replaced by other standard. And yet, the true basic Virtues never become out worn.Love, truth, justice, beauty can never die and cease to be, whilst mankindsurvives. They are innate in us. [6]

Since laws are make and administeredby human beings perfected is impossible. Laws are imperfect, nor are judges andmagistrates infallible.[7]Injustice, always evil, is surely more horrifying when it pretends as justice,and is committed by the very courts that exist to provide justice[8]. An old English judge “ injustice cuts to the bone”;thus, “ It is better that a dozen guilty should escape then that one innocentshould be convicted.” However, in practice, many rulers in dictatorship regimeimplement the contrary principle: they would rather kill ten thousand innocentnot allow a simple guilty escape. Among the moral virtues, at any rate, justice is the Queen. Truthis the foundation of justice, goodness isits end, and beauty constitutes itsessential quality. The justice of a law or a judgement depends uponwhether it is based on truth, whether it is directed toward the good life, andwhether its disposition is fittingly adapted to the end.[9]The acquisition of knowledge is thus an obligation, aresponsibility, indivisibly linked to the administration of justice.[10]To recognize that justice is in part a function of the existing state ofknowledge and that man, who esteem justice the highest virtue, thus have dutyto know, then who are in administer of justice should be learned men;[11]although judge is not necessity one deeply learned in the law, rather rich inknowledge generally. [12]

Since Justice meansmaintenance of right, we must consider the problem of rights. If we render to anotherfull right we do harmful justice, and that if ourselves are deprived of anyright we suffer injustice. What is his or our right is thus the realquestions.[13]‘Only the conduct of men in their relations toother’s that can predicate justice or injustice, one’s conduct may havegood or evil result to himself, affects none others, then it is neither justnor unjust.’ [14]

“Justiceis the first virtue of social institutions, as truth is of systems of thought.Rawls announced that Justice is happiness according to virtue.[15] If justice be the greatest good, then injustice must be thegreatest evil.[16]Society as a whole is liable to error in respect of justice. Justice can be enforced only by law;For Mankind has a moral nature;[17]desireto do what is right and just simply because it is right and just, the desire todo what is right because doing this increases human happiness, or because ittends to promote equality. [18]

Truth is single. There are no different kinds of truth. The truth is to bediscovered, but created, it will be a sure guild in life. Justice ranks next to truth have been the generaljudgement of mankind; it has engaged the thought and fired the imagination ofthe greater mind, such as Plato, Aristotle, Cecero…Rawls. [19] Thereis a close link between truth and justice. Whether truth is absolute or onlyrelative has been the most actively discussed topic in the field of philosophy.[20]

Justice is traditionally personifiedas a goddess. She is blind and armed with a sword, as well as the pairof scales, which symbolism impartiality and force. [21]Impartialitygives equal treatment to equals and unequal alike. Emphasis on equality inconnection with justice began with Aristotle.

Initially the idea of justice consisted of twoelements, the requital of deserted the practice impartiality, later the third element,the relief of need, which is a strong moralobligation, but still not universally accepted.[22]The true basic Virtues never become out worn. Justice cannot be the monopoly of any nation, group, orindividual, as equity was introduced to modify the harshness of law, so Mercyhas been born in the human heart to mitigate the unyielding quality of justice[23]. Inthe law the concept of justice isdistinguished from equity, which is prettywell synonymous with fairness. Justice setsout rigid rules and can be qualified by equity. Equity is not rigid, it ismalleable can be adjusted to special circumstances.

As Professor Neilsonpoint out that “Justice is the law of Providence inherent in nature;” [24] Justice comes from the creator. Those who scorn the idea of natural law or naturalright, they deny justice. Justice is fromthe beginning. It is prior to the appearance of the political state. Thedisasters will overtake us if we transgress the law of nature.[25]Before the close of the 5 century, philosophyconceived nature as a law of justice and right inherent in human beings and inthe world. Other philosophy conceived nature-non morally, and asmanifested in human being it was self-assertion or egoism, the desire forpleasure or for power.[26] RomanJurist Ulpian urged that students oflaw should also be students of Justice. [27]Since all communist regime are material atheism that deny natural law, justiceis impossible survive in such regimes.

‘The rendering to eachperson of what is his’; Is Roman law’s principle of justice for setting disputein civil law. Emery put it that To secure justice those possessinggovernment powers should be restrained fromany acts infringing those liberties and rights; for justiceis the equilibrium of restrain freedom and liberty. [28]Justice is the central political question. Socratesbelievesthat justice and virtue generally has to do with knowledge and bring happiness,but not elaborated or really convincing. Plato in his Law putit“ man, when perfected, is the best of animals,but, when separated from law and justice, he is the worst of all.”[29]Hemakes ‘Justice the most important of the virtues, while makes wisdom theleading virtue, for it is the virtue of ruling elite, and virtue of reason, thecontrolling element in the soul. [30]Aristotle quite a line from the portTheogins which said that ‘ all virtues is containedin Justice .’ Justice is an act that tries to make things right. Justice was seen as fulfilling thedemands and obligations of the relationship and, when there was a breach,attempting to make things right, healing the harm and finding solutions thatwould restore the well-being, or shalom, of the relationship.[31]

The essence of law isjustice. All existing laws should endeavour to embody as perfectly aspossible ,‘ justice is the most excellent ofvirtues… more glorious than either the evening or Moring star.’Aristotle said in Ethics book V. Amongthe moral virtues, at any rate, justice is theQueen. Truth is the foundation of justice,goodness is its end, and beauty constitutes its essential quality. Thejustice of a law or a judgement depends upon whether it is based on truth,whether it is directed toward the good life, and whether its disposition isfittingly adapted to the end.[32]Justicerequire everyone should have a fair chance for equal opportunity of acquiresthat of requiring property with its legal rights. Justice gives victims of thecrime a right to see it punished.

The principles of justice are moralprinciples that would be chosen when persons take up the moral point of view, acentral feature of which is impartiality. Moral principles should not favourour own position simply because it is our own.Thereis a wide gap between a theory of justice based on abstract philosophical postulates and one that applies justice to the conflict of values inherent inthe solution of any legal problem, whether on a national or an internationalscale.[33]

Justice like truth, isone of the eternal verities.[34]Allmankind pays ready and willing lip service to the idea of justice. Good and bad men alike feel that injustice inflicted on them is anunendurable wrong. The need for justice rises inevery human heart.You need no education torealise the necessity of justice and the iniquity of injustice. Strictly speaking, Justice is a department of the science ofmorals. Justice, that impartial treatment of every man in matters that relateto his happiness; which is measured solely be a consideration of the propertyof the receiver, and the capacity of him that bestows. Its principle is to beno respecter of persons.’[35] Justice is the according to everyone his right, andthat right is such freedom of action in gratifying one’s desires can beexercised in harmony with like freedom by others. Inother words, it is equal freedom, equal restraint. Itis order and harmony. Thus, the order is anessential element of justice. It is society not individual to decide thedegree of restraint or liberty is necessary to secure the order and harmony. Justice in some aspects is the desired equilibriumbetween the needs of society and the interests of individuals.[36]Maintain the line of equilibrium between necessaryfreedom and necessary restraint. To secure justice those possessinggovernment powers should be restrained fromany acts infringing those liberties and rights; for justiceis the equilibrium of restrain freedom and liberty. Injustice may cause unhappiness far greater than that causedby any material loss. [37]Accordingto Herber Spencer’s theory, the ideaof justice contains two sentiments positive and negative. Rights nature to unimpeded use of his facultiesand to the benefits acquirement; and rightsnecessitates some limitation of his own claim; theidea of justice or injustice as they are or not in equilibrium, justice is theequilibrium between the full freedom of individual, and the restraint necessary for the safety of society.[38]

Most people are born with an inherentsense of justice but are unable to sense clearly what it means. Justice is nomore than an ideal. Human kind loves fairplay. That, we say, is justice. [39]The philosophy of retributive or compensatory justice.In Old Testament is said "An eye for an eye and a tooth for a tooth".Yet Jesus teaches us "If a mansmite thee on one cheek, turn thou the other."Justice as aspecific notion, distinguished from morality in general, clearly began as theguiding principle of law; Especially associated with punishment for breaches ofthe law, for disturbance of public order. The psychological origin ofpunishment lies in the resentment and impulse to retaliate,desire for revenge. Reward has apsychological origin matching that punishment: gratitude for having beenbenefit is a natural analogue of resentment for having been harmed. Reward andpunishment in moral thought, lead principle of the idea of justice or fairness,the principle of impartiality come close behind.

Justice can be enforced only by law. The God is the fountain of justice, in Britishthe Queen become the source of justice, after the revolution of 1688, thejudiciary were made practically independent of the Crown and of all politicalinfluences. The final confirmation of the independent of the judges is in theact of Settlement of 1701.[40]

Justice is the virtue, the habit of good that inclines us to give everyone his due. A liar sinsagainst justice; so does a thief, an adulterer, a blasphemer,the calumniator, the backbiter and the perjurer. Society is built upon mutual trust. The virtueof justice should protect that trust, should incline every man to give to every other man what is his due.To the extent to which that virtue is absent, we must have police, courts,jails and executioners,we must have armies, navies and military preparedness,for the protection of our rights. Justice draws the line between my rights and yours. Because of individual selfishness, men organize governments todistinguish between mine and yours in case of conflict;and they organize courts to adjudicateindividual differences.[41]Revenge is justice running wild.[42]Delay and expense cause resentment in the suitor forjustice and so cause injustice;[43]therefore,the restoration of equilibrium is an essentialelement in the concept of justice.

If justice be thegreatest good, then injustice must be the greatest evil. Hence error in men’sopinions of what is justice will work that greatest evil.Society as a whole is liable to errorin respect to justice; Through ignorance thereal nature of justice, one who claim he is doing justice may work grievousinjustice to others. Many a theory of justice has been found to work injustices.[44]as mistakes have been made in the past as to what is justice, so they will bemade now and in the future, and can be lessened only by greater wisdom andforethought, by greater effort to consider justice apart by itself, withphilosophical detachment, with minds unclouded by pity,sympathy, charity, and other virtues, or by envy,hate, prejudice, and like evil sentiments.[45]Injustice to one may injury the many. As declaredby Ulpian ‘the duty of ascertainingthe real nature of justice is especially incumbent on those who have to do with theframing or administration of the laws, sincejustice can be enforced only by law. [46]

Human justice consists in securing to each individual as much liberty of action in the exercise of his physicaland mental powers and as much liberty to enjoy the fruit of such action as is consistentwith like liberty for others, and with restrictionsonly necessary for the welfare ofsociety as a whole without discriminationfor or against any individual; Justice is morefirmly secured by a government with a divisionof powers, a written constitution excludingfrom government intervene personal rights as experience show to be necessaryboth for the happiness and efficiency of the individual and for the welfare andefficiency of all; With an independent judiciary to defend those rights whom assailed, by impatient and changeable majority.[47] Ina free country must have someone that authority tointerpret of constitutional law and other laws. The freedom impartial independent judicial is the keypoint to keep maintains defence of the rights and liberty of people.[48]Justiceis not fully certainly secured by the maintenance of particular politicalinstitutions, however excellent, even best institutions may be maladministeredinjustice is still often suffered by the individual or society. Oppressive statutes within the legislative powersare too readily enacted. Abuses inadministration are too long permitted to exist. The only remedy for those is amore enlightener public opinion, a wider diffusion of the spirit of impartiality, a greater realization ofthe rights and need of every person to life , liberty, and the results of hisindustry and economy.

Justice delayed isjustice denied. Perfectjustice may not be attainable by us imperfect man. Great as are thevirtues of charity, benevolence, philanthropy,piety and the like, justice is a yet greatervirtue. In the words of DanielWebsters eulogy: whoever labour on this edifice of justice, clears itsfoundations, strengthen its pillars, adorns its entablatures, or contributes to raise its august dome still higher in the skies, connect himself in name,fame, and character with that which is, and must be, as durables as the frameof human society.[49]Therefore, fighting for justice and freedom is the noblest course of humansociety, “If I have to die; I would like to die for fighting for Justice andfreedom of China”, stated on the Searching For Justice Conference on July 2005,I have been fighting for Justice and Freedom of Chinese over thirty years and willgo on fighting without hesitate till the ending of the CCP rogue regime.

Justice is existence fromthe beginning. It is prior to the appearance of the political state. Thedisasters that will overtake us if we transgress the law of nature.[1]Justice is the bond of which holds asociety together, a harmonious unionof individuals, each of whom has found his life-work in accordance with hisnatural fitness and his training.[2]Justice like truth is one of the eternal verities; allmankind pays ready and willing lip service to the idea of justice. Goodand bad men alike feel that injustice inflicted on them is an unendurablewrong. The need for justice rises in every humanheart.You need no education to realise thenecessity of justice and the iniquity of injustice. Justice may be defined as the establishment of right between men and women,as individuals or in association. Lord Bacon said that revenge is a kind of wild justice. But true justice is not any kind of revenge,rather is it the redress of a disturbed balance,re-establishment of a spiritual equilibrium in disorder human relationship.[3]Justice cannot be the monopoly of any nation, group, or individual, as equitywas introduced to modify the harshness of law, so Mercy has been born in thehuman heart to mitigate the unyielding quality of justice[4].Morality is a changeable thing, altering with time and place. Standard or moralvalues, become worn-out and replaced by other standard. And yet, the true basic Virtues never become out worn.Love, truth, justice, beauty can never die and cease to be, whilst mankindsurvives. They are innate in us. [5]

Since laws are make and administeredby human beings perfected is impossible. Laws are imperfect, nor are judges andmagistrates infallible.[1]Injustice, always evil, is surely more horrifying when it pretends as justice,and is committed by the very courts that exist to provide justice[2]. “ It is better that a dozen guilty shouldescape then that one innocent should be convicted.” However, in practice, many rulersin dictatorship regime implement on the contrary principle. Among the moralvirtues, at any rate, justice is the Queen. Truth is the foundation of justice, goodness is its end, and beautyconstitutes its essential quality. The justice of a law or a judgementdepends upon whether it is based on truth, whether it is directed toward thegood life, and whether its disposition are fittingly adopted to the end.[3]The acquisition of knowledge is thus an obligation, aresponsibility, indivisibly linked to the administration of justice.[4]To recognize that justice is in part a function of the existing state ofknowledge and that man, who esteem justice the highest virtue, thus have dutyto know, then who are in administer of justice should be learned men;[5]judge is not necessity one deeply learned in the law, but rather rich inknowledge generally. [6]

Since Justice means maintenance of right, we must consider the problem of rights. If we render to anotherfull right we do harmful justice, and that if ourselves are deprived of anyright we suffer injustice. What is his or our right is thus the realquestions.[1]“Justice is the firstvirtue of social institutions, as truth is of systems of thought. Rawlsannounced that Justice is happiness according to virtue.[2] If justice bethe greatest good, then injustice must be the greatest evil.[3]Society as a whole is liable to error in respect of justice. Justice can be enforced only by law; For Mankind has a moral nature;[4]desireto do what is right and just simply because it is right and just, the desire todo what is right because doing this increases human happiness, or because ittends to promote equality. [5]

Truth is single. There are no different kinds of truth. The truth is to bediscovered, but created, it will be a sure guild in life. Justice ranks next to truth have been the generaljudgement of mankind; it has engaged the thought and fired the imagination ofthe greater mind, such as Plato, Aristotle, Cecero…Rawls. [1] Thereis a close link between truth and justice. Whether truth is absolute or onlyrelative has been the most actively discussed topic in the field of philosophy.[2]

Justice is traditionally personifiedas a goddess. She is blind and armed with a sword, as well as the pairof scales, which symbolism impartiality and force. [1]Impartialitygives equal treatment to equals and unequal alike. Emphasis on equality inconnection with justice began with Aristotle.Initially the idea of justice consisted of twoelements, the requital of deserted the practice impartiality, later the third element,the relief of need, which is a strong moralobligation, but still not universally accepted.[2]The true basic Virtues never become out worn. Justice cannot be the monopoly of any nation, group, orindividual, as equity was introduced to modify the harshness of law, so Mercyhas been born in the human heart to mitigate the unyielding quality of justice[3]. Inthe law the concept of justice isdistinguished from equity, which is prettywell synonymous with fairness. Justice setsout rigid rules and can be qualified by equity. Equity is not rigid, it ismalleable can be adjusted to special circumstances.

[1]F.A. Hayek, The Constitution of Liberty, University of Chicago Press, 1960.p.171

As Professor Neilson pointout that “Justice is the law of Providence inherent in nature;” [1] Justice comes from the creator. Those who scorn the idea of natural law or naturalright, they deny justice. Justice is fromthe beginning. It is prior to the appearance of the political state. Thedisasters will overtake us if we transgress the law of nature.[2]Before the close of the 5 century, philosophyconceived nature as a law of justice and right inherent in human beings and inthe world. Other philosophy conceived nature-non morally, and asmanifested in human being it was self-assertion or egoism, the desire forpleasure or for power.[3] RomanJurist Ulpian urged that students oflaw should also be students of Justice. [4] Sinceall communist regime are material atheism that deny natural law, justice is impossiblesurvive in such regimes.

‘The rendering to eachperson of what is his’; Is Roman law’s principle of justice for setting disputein civil law. Emery put it that To secure justice those possessinggovernment powers should be restrained fromany acts infringing those liberties and rights; for justiceis the equilibrium of restrain freedom and liberty. [1]Justice is the central political question. Socratesbelievesthat justice and virtue generally has to do with knowledge and bring happiness,but not elaborated or really convincing. Plato in his Law putit“ man, when perfected, is the best of animals,but, when separated from law and justice, he is the worst of all.”[2]Hemakes ‘Justice the most important of the virtues, while makes wisdom theleading virtue, for it is the virtue of ruling elite, and virtue of reason, thecontrolling element in the soul. [3]Aristotle quite a line from the portTheogins which said that ‘ all virtues is containedin Justice .’ Justice is an act that tries to make things right. Justice was seen as fulfilling thedemands and obligations of the relationship and, when there was a breach,attempting to make things right, healing the harm and finding solutions thatwould restore the well-being, or shalom, of the relationship.[4]

The essence of law isjustice. All existing laws should endeavour to embody as perfectly aspossible ,‘ justice is the most excellent ofvirtues… more glorious than either the evening or Moring star.’Aristotle said in Ethics book V. Amongthe moral virtues, at any rate, justice is the Queen.Truth is the foundation of justice, goodness is its end, and beautyconstitutes its essential quality. The justice of a law or a judgementdepends upon whether it is based on truth, whether it is directed toward thegood life, and whether its disposition is fittingly adapted to the end.[1]Justicerequire everyone should have a fair chance for equal opportunity of acquiresthat of requiring property with its legal rights. Justice gives victims of thecrime a right to see it punished.

[1]John C.H.Wu, Fountain of Justice, Sheedand Ward New York 1955.p.240

The principles of justice are moralprinciples that would be chosen when persons take up the moral point of view, acentral feature of which is impartiality. Moral principles should not favourour own position simply because it is our own.Thereis a wide gap between a theory of justice based on abstract philosophicalpostulates and one that applies justice to the conflict of values inherent inthe solution of any legal problem, whether on a national or an internationalscale.[1]

Justice like truth, isone of the eternal verities.[2]Allmankind pays ready and willing lip service to the idea of justice. Good and bad men alike feel that injustice inflicted on them is anunendurable wrong. The need for justice rises inevery human heart.You need no education torealise the necessity of justice and the iniquity of injustice. Strictly speaking, Justice is a department of the science ofmorals. Justice, that impartial treatment of every man in matters that relateto his happiness; which is measured solely be a consideration of the propertyof the receiver, and the capacity of him that bestows. Its principle is to beno respecter of persons.’[3] Justice is the according to everyone his right, andthat right is such freedom of action in gratifying one’s desires can beexercised in harmony with like freedom by others. Inother words, it is equal freedom, equal restraint. Itis order and harmony. Thus, the order is anessential element of justice. It is society not individual to decide thedegree of restraint or liberty is necessary to secure the order and harmony. Justice in some aspects is the desired equilibriumbetween the needs of society and the interests of individuals.[4]Maintain the line of equilibrium between necessaryfreedom and necessary restraint. To secure justice those possessinggovernment powers should be restrained fromany acts infringing those liberties and rights; for justiceis the equilibrium of restrain freedom and liberty. Injustice may cause unhappiness far greater than that causedby any material loss. [5]Accordingto Herber Spencer’s theory, the ideaof justice contains two sentiments positive and negative. Rights nature to unimpeded use of his facultiesand to the benefits acquirement; and rightsnecessitates some limitation of his own claim; theidea of justice or injustice as they are or not in equilibrium, justice is theequilibrium between the full freedom of individual, and the restraint necessary for the safety of society.[6]